Kagan Doesn't Deserve It

05.10.10 12:36 PM ET

By nominating Elena Kagan to the Supreme Court, President Obama has continued the policies of cronyism and elitism that he promised to end. Paul Campos on why she’s supremely unqualified. Plus,
read our full coverage of Elena Kagan

Barack Obama’s nomination of Elena Kagan to the Supreme Court is an abuse of the trust granted to him by the nearly 70 million voters who put him in office 18 months ago. A central theme of Obama’s campaign was that his administration would be committed to openness in government, and to a fundamentally democratic public process for deciding major public-policy questions. This nomination makes a mockery of that pledge.

In one superficial sense, the Kagan nomination is attractive to political progressives. If the Senate approves it, the court’s membership will be a particularly powerful symbol of the collapse of the WASP Old Boys Club that until recently more or less ran America. A court with Kagan on it would consist of six Catholics and three Jews. A third of the justices would be women. The court would feature two Italian Americans, a Latina, and an African American—and no white Anglo-Saxon Protestants.

She has somehow managed to spend her entire professional career cycling between the highest levels of legal academia and the federal government without taking a public stand on almost any controversial issue.

But in another sense the spectacular quality of that collapse can obscure the extent to which the previous Old Boys Club has been replaced by a new Boys (and Girls) Club–one that can be just as insular and elitist as the institution it replaced.

What basis will either the Senate or the American people have for deciding whether the 49-year-old Kagan should spend decades as one of the most powerful people in our government? Kagan has never been a judge, which makes it all the more imperative that her published work should provide us with plenty of information about what sort of a justice she would be. Yet in the course of nearly 20 years in legal academia she has
written very little, and what she has written provides
almost no clues to her beliefs regarding important legal issues, or her views more generally about how judges ought to go about interpreting the law.

Even more disturbingly, we have very little evidence about Kagan’s politics. Supporters and detractors have been reduced to searching through 30-year-old issues of the
Princeton student newspaper to
dig up political statements Kagan made as a teenager, since she has somehow managed to spend her entire professional career cycling between the highest levels of legal academia and the federal government without taking a public stand on almost any controversial issue.

Indeed, it’s no exaggeration to say that the only real basis we have for making any judgment about Kagan’s current political beliefs is that she has a lot of liberal friends in high places–most notably Bill Clinton and Barack Obama, who both hired her to work in their administrations. Now the naïve response to this is to claim that Kagan’s political beliefs don’t matter because it’s merely her job to interpret the law–to call balls and strikes rather than to invent the rules of the game, in Chief Justice John Roberts’
wildly disingenuous metaphor. (It will be interesting to see whether Kagan is willing to do anything other than utter empty platitudes at her own confirmation hearing, especially given that in a 1995 book review she
pointed out, accurately enough, that such hearings have become “vapid and hollow charade,” because a nominee is not required to “reveal what kind of Justice she would make, by disclosing her views on important legal issues.”)

Grownups understand that a Supreme Court justice’s politics are by necessity a crucial factor in how he or she goes about interpreting the law, since difficult questions of legal interpretation are inherently political. Certainly conservatives understood this when they opposed the nomination of Harriet Miers: Their primary objection to her had nothing to do with whether she was “qualified” for the position, but rather with the fact that, just like Kagan, she had practically no public record. The argument for Miers came down to the claim that conservatives should simply trust George W. Bush to make these kinds of decisions. This is exactly the same argument that political progressives are now being asked to accept in regard to Kagan: that they should trust Barack Obama.

That argument is wrong both practically and as a matter of principle. Practically speaking, the Obama administration’s track record on legal issues, which includes continuing and even
expanding on some of the Bush administration’s worst attacks on civil liberties, is hardly one that ought to give liberals comfort. And as a matter of principle, it’s simply wrong for citizens of a democratic republic to be treated like small children, who are supposed to accept the choices of the elites in matters such as this, on the basis of evidence-free assurances that their leaders know best.

In short, Kagan’s career represents rampant elitism–which is to say cronyism Ivy League-style–in its worst form. No one doubts she is smart, ambitious, hard-working, and well-liked by lots of influential people. In fact she’s so well-liked she’s gotten a series of jobs for which she was largely unqualified. She obtained tenure at two of America’s top universities, and became a dean at one of them, without producing anything resembling the kind of academic record normally required for such positions. (This circumstance seems particularly ironic given a dismal aspect of Harvard’s
hiring practices during her term as dean. Thirty one of the school’s 32 tenure-track hires were white, and none were African American or Hispanic. Apparently no “qualified” minorities could be found). She was named Solicitor General—that is, the federal government’s top courtroom lawyer—without ever having appeared in a courtroom on behalf of a client. Now someone who has never been a judge, and, far more important, has taken almost no public positions on any issue relevant to being a judge, is on the verge of being put on the Supreme Court.

In a particularly perverse sense, this would be a fitting capstone to a remarkable career.

Paul Campos is a professor of law at the University of Colorado at Boulder.